Current Legal Developments

International Court of Justice

Case Concerning Kasikili/ Island (/) On 13 December 1999, the International Court of Justice gave judgment in the Case Concerning Kasikili/Sedudu Island (BotswanaINamibia).1 The parties were the southern African states of Botswana and Namibia and their dispute concerned a small island in the Chobe River-a matter that had been the subject of a decade of difference.

Background

The parties are neighbours-Namibia is on the south-west coast of Africa and to its east is Botswana. A narrow finger of land, the Caprivi Strip, protrudes from Namibia and runs along Botswana's northern border The island at the centre of this case, known as "Kasikili" in Namibia and "Sedudu" in Botswana"3 ("the island"), is located in the part of the Chobe River which divides the Botswana territory to the south from the Namibian Caprivi Strip to the north and which also divides north-south around the island. The boundary around and the legal status of this island had been the subject of dispute between the parties throughout the last decade beginning shortly after Namibian independence (in 1990).4 In the early 1990s the parties with the assistance of appointed a Joint Team of Technical Experts to resolve the matter but no conclusion was reached.5 In 1995 it was decided to submit the matter to the Court. This was done by way of a Special Agreement ("Special Agreement") between the parties which was signed, entered into force and filed in the Registry of the Court in the

1 For the Judgment, Declarations, Separate Opinions, Dissenting Opinions and other relevant texts see the website of the ICJ at www.icj-cij.org/icjwww/idocket/ibona/ibonaframe.htm (hereinafter "ICJ website report"). 2 Absalom "Water Wars Rise New 25. 2 Shigweda, Again", (1998) African, June, Case Concerning Kasikili/SeduduIsland (Botswana/Namibia),Judgment, 13 December 1999, ICJ website report (hereinafter "Judgment"), para. 1 l. 4 15. 4 Ibid., para. Ibid., para. 15.

581 582 following year.6 The Special Agreement, amongst other functions, set out the tasks asked of the Court. These were twofold: the Court was asked to determine, first, the "boundary between Namibia and Botswana around Kasikili/Sedudu Island" and, secondly, "the legal status of the island". Namibia and Botswana disagreed as to where the boundary between their two countries was located in relation to the island, specifically whether the boundary is located to the north of the island or to the south of the island. Botswana maintained that the boundary was located in the Chobe River to the north and west of the island. Namibia maintained that the boundary was located in the channel to the south of the island.7 Disagreeing as to the location of the boundary around the island, the parties also disagreed as to whether the island was part of the territory of Botswana or Namibia. Each maintained that the island was part of their respective territory and exclusive sovereignty over the island vested in them respectively. The Decision

At the end of the day the decision of the 15-member Court favoured Botswana with the Judgment providing as follows. "For these reasons, THE COURT, (1) By eleven votes to four, Finds that the boundary between the Republic of Botswana and the Republic of Namibia follows the line of deepest soundings in the northern channel of the Chobe River around Kasikili/Sedudu Island; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Higgins, Kooijmans; AGAINST: Vice-President Weeramantry; Judges Fleischhauer, Parra- Aranguren, Rezek. (2) By eleven votes to four, Finds that Kasikili/Sedudu Island forms part of the territory of the Republic of Botswana; IN FAVOUR: President Schwebel; Judges Oda, Bedjaoui, Guillaume, Ranjeva, Herczegh, Shi, Koroma, Vereshchetin, Higgins, Kooijmans; AGAINST: Vice-President Weeramantry; Judges Fleischhauer, Parra- Aranguren, Rezek. (3) Unanimously, Finds that, in the two channels around Kasikili/Sedudu Island, the nationals of, and vessels flying the flags of, the Republic of Botswana and the Republic of Namibia shall enjoy equal national treatment."8

6 Signed 15 February 1996, in force 15May 1996, filed (by letter dated 17 May 1996) 29 May 1996. 7 11. 8 Judgment, para. Ibid., para. 104.